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EXHIBIT 10.3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 18, 1998 (this "Agreement"), between
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Stockholder") and The Kroger Co., an Ohio corporation
("Kroger").
WHEREAS, ▇▇▇▇ ▇▇▇▇▇, Inc., a Delaware corporation ("▇▇▇▇ ▇▇▇▇▇"), Kroger
and Jobsite Holdings, Inc., a Delaware corporation and a wholly owned subsidiary
of Kroger ("Merger Sub"), are contemporaneously entering into an Agreement and
Plan of Merger, dated as of this date (the "Merger Agreement"), which provides,
among other things, for the merger of Merger Sub with and into ▇▇▇▇ ▇▇▇▇▇ (the
"Merger");
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Kroger and Merger Sub have requested that the Stockholder make
certain agreements with respect to certain shares of Common Stock, par value
$.01 per share ("Shares"), of ▇▇▇▇ ▇▇▇▇▇ beneficially owned by him, upon the
terms and subject to the conditions of this Agreement; and
WHEREAS, in order to induce Kroger and Merger Sub to enter into the Merger
Agreement, the Stockholder is willing to make certain agreements with respect to
the Subject Shares (as defined);
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements set forth in this Agreement, the parties agree as follows:
1. Voting Agreements; Proxy.
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(a) For so long as this Agreement is in effect, in any meeting of
stockholders of ▇▇▇▇ ▇▇▇▇▇, and in any action by consent of the stockholders of
▇▇▇▇ ▇▇▇▇▇, the Stockholder shall vote, or, if applicable, give consents with
respect to, all of the Subject Shares that are held by the Stockholder on the
record date applicable to the meeting or consent in favor of the Merger
Agreement and the Merger contemplated by the Merger Agreement, as the Merger
Agreement may be modified or amended from time to time in a manner not adverse
to the Stockholder. The Stockholder shall use his best efforts to cast that
Stockholder's vote or give that Stockholder's consent in accordance with the
procedures communicated to that Stockholder by ▇▇▇▇ ▇▇▇▇▇ relating thereto so
that the vote or consent shall be duly counted for purposes of determining that
a quorum is present and for purposes of recording the results of that vote or
consent.
(b) Upon the reasonable written request of Kroger, in furtherance of the
transactions contemplated in this Agreement and by the Merger Agreement and in
order to secure the performance of the Stockholder's duties under Section 1(a)
of this Agreement, the Stockholder shall promptly execute, in accordance with
the provisions of Section 212 of the Delaware General Corporation Law, and
deliver to Kroger an irrevocable proxy, substantially in the form attached as
Exhibit A, and irrevocably appoint Kroger or its designees, with full power of
substitution, its attorney and proxy to vote or, if applicable, to give consent
with respect to, all Shares constituting Subject Shares at the time of the
relevant record date with regard to any of the matters referred to in paragraph
(a) above at any meeting of the stockholders of ▇▇▇▇ ▇▇▇▇▇, or in connection
with any action by written consent by the stockholders of ▇▇▇▇ ▇▇▇▇▇. The
Stockholder acknowledges and agrees that this proxy, if and when given, shall be
coupled with an interest, shall constitute, among other things, an inducement
for Kroger to enter into the Merger Agreement, shall be irrevocable and shall
not be terminated by operation of law or otherwise upon the occurrence of any
event and that no subsequent proxies with respect to such Subject Shares shall
be given (and if given shall not be effective); provided, however, that any such
proxy shall terminate automatically and without further action on behalf of the
Stockholder upon the termination of this Agreement.
2. Covenants. For so long as this Agreement is in effect, the Stockholder
agrees not to (i) sell, transfer, pledge, assign, hypothecate, encumber, tender
or otherwise dispose of, or enter into any contract with respect to the sale,
transfer, pledge, assignment, hypothecation, encumbrance, tender or other
disposition of (each such disposition or contract, a "Transfer"), a number of
Subject Shares in excess of 10% of the total number of (A) Subject Shares plus
(B) any Shares the Stockholder then has the right to acquire, or will have the
right to acquire within 60 days, pursuant to options to purchase Shares granted
to the Stockholder by ▇▇▇▇ ▇▇▇▇▇; (ii) ▇▇▇▇▇ any proxies with respect to any
shares that then constitute Subject Shares, deposit any of the Subject Shares
into a voting trust or enter into a voting or option agreement with respect to
any of the Subject Shares; (iii) subject to Section 6, directly or indirectly,
solicit, initiate, encourage or otherwise facilitate any inquiries or the making
of any proposal or offer with respect to an Acquisition Proposal (as defined in
the Merger Agreement) or engage in any negotiation concerning, or provide any
confidential information or data to, or have any discussions with any person
relating to, an Acquisition Proposal; or (iv) take any action which would make
any representation or warranty of the Stockholder in this Agreement untrue or
incorrect or prevent, burden or materially delay the consummation of the
transactions contemplated by this Agreement;
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provided, however, that nothing in the foregoing provisions of this Section 2
shall prohibit the Stockholder from effecting any Transfer of Subject Shares (A)
pursuant to any bona fide charitable gift or by will or applicable laws of
descent and distribution, (B) for estate planning purposes, if the transferee
pursuant to this clause (B) agrees in writing to be bound by the provisions of
this agreement, or (C) pursuant to a pledge for purposes of securing customary
margin or similar loans or pursuant to the writing of options or in connection
with any hedging, derivative or similar transaction (and taking other necessary
or customary steps related thereto, including, without limitation, Transferring
any certificate evidencing the shares to a lender or trustee or a nominee
thereof), if notwithstanding such Transfer made pursuant to this clause (C), the
Stockholder retains the power to vote such Shares in accordance with the terms
of this Agreement and for as long as this Agreement is in effect. No Transfer
made pursuant to the proviso of the immediately preceding sentence shall be
counted in determining whether the Stockholder is in compliance with the 10%
limitation set forth in clause (i) of the immediately preceding sentence.
Notwithstanding anything to the contrary contained in this Agreement, the
Stockholder shall not effect any Transfer of Subject Shares that would prevent
the business combination to be effected pursuant to the Merger from being
accounted for as a "pooling-of-interests" under GAAP (as defined in the Merger
Agreement) or the rules and regulations of the SEC (as defined in the Merger
Agreement). As used in this Agreement, "person" shall have the meaning specified
in Sections 3(a)(9) and 13(d)(3) of the Securities Exchange Act of 1934, as
amended.
3. Representations and Warranties of the Stockholder. The Stockholder
represents and warrants to Kroger that:
(a) Capacity; No Violations. The Stockholder has the legal capacity to
enter into this Agreement and to consummate the transactions contemplated by
this Agreement. This Agreement has been duly executed and delivered by the
Stockholder and constitutes a valid and binding agreement of the Stockholder
enforceable against the Stockholder in accordance with its terms except as such
enforceability may be limited by applicable bankruptcy, insolvency and similar
laws affecting creditors' rights generally and general principles of equity
(whether considered in a proceeding in equity or at law). The execution,
delivery and performance by the Stockholder of this Agreement will not (i)
conflict with, require a consent, waiver or approval under, or result in a
breach or default under, any of the terms of any contract, commitment or other
obligation to which the Stockholder is a party or by which the Stockholder is
bound; (ii) violate any order, writ, injunction, decree or statute, or any law,
rule or regulation applicable to the Stockholder or the Subject Shares; or (iii)
result in the creation of, or impose any obligation on the Stockholder to
create, any Lien upon the Subject Shares that would prevent the Stockholder from
voting the Subject Shares. In this Agreement, "Lien" shall mean any lien,
pledge, security interest, claim, third party right or other encumbrance.
(b) Subject Shares. As of the date of this Agreement, the Stockholder is
the beneficial owner of and has the power to vote or direct the voting of the
Subject Shares free and clear of any Liens that would prevent the Stockholder
from voting such Subject Shares. As of the date of this Agreement, the Subject
Shares are the only shares of any class of capital stock of ▇▇▇▇ ▇▇▇▇▇ which the
Stockholder has the right, power or authority (sole or shared) to sell or vote,
and, other than options or warrants to purchase Shares held by the Stockholder
as of this date, the Stockholder does not have any right to acquire, nor is it
the beneficial owner of, any other shares of any class of capital stock of ▇▇▇▇
▇▇▇▇▇ or any securities convertible into or exchangeable or exercisable for any
shares of any class of capital stock of ▇▇▇▇ ▇▇▇▇▇. The Stockholder is not a
party to any contracts (including proxies, voting trusts or voting agreements)
that would prevent the Stockholder from voting the Subject Shares.
4. Expenses. Each party to this Agreement shall pay its own expenses
incurred in connection with this Agreement.
5. Specific Performance. The Stockholder acknowledges and agrees that if he
fails to perform any of its obligations under this Agreement, immediate and
irreparable harm or injury would be caused to Kroger for which money damages
would not be an adequate remedy. In that event, the Stockholder agrees that
Kroger shall have the right, in addition to any other rights it may have, to
specific performance of this Agreement. Accordingly, if Kroger should institute
an action or proceeding seeking specific enforcement of the provisions of this
Agreement, the Stockholder hereby waives the claim or defense that Kroger has an
adequate remedy at law and hereby agrees not to assert in that action or
proceeding the claim or defense that a remedy at law exists. The Stockholder
further agrees to waive any requirements for the securing or posting of any bond
in connection with obtaining any equitable relief.
6. Stockholder Capacity. No person bound by this Agreement who is or
becomes during the term hereof a director or officer of the Company makes any
agreement or understanding herein in his capacity as such director or officer.
The Stockholder signs solely in his capacity as the beneficial owner of, or the
general partner of a partnership which is the beneficial owner of, the
Stockholder's Subject Shares and nothing herein shall limit
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or affect any actions taken by the Stockholder in his capacity as an officer or
director of ▇▇▇▇ ▇▇▇▇▇ to the extent specifically permitted by the Merger
Agreement. Nothing in this Agreement shall be deemed to constitute a transfer of
the beneficial ownership of the Subject Shares by the Stockholder.
7. Notices. All notices and other communications given or made pursuant to
this Agreement shall be in writing and shall be deemed to have been duly given
or made as of the date of receipt and shall be delivered personally or mailed by
registered or certified mail (postage prepaid, return receipt requested), sent
by overnight courier or sent by telecopy, to the applicable party at the
following addresses or telecopy numbers (or at any other address or telecopy
number for a party as shall be specified by like notice):
If to Kroger:
The Kroger Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇., Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Stockholder:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o ▇▇▇▇ ▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
8. Parties in Interest. This Agreement shall inure to the benefit of and be
binding upon the parties and their respective successors and assigns; provided,
however, that any successor in interest or assignee shall agree to be bound by
the provisions of this Agreement. Nothing in this Agreement, express or implied,
is intended to confer upon any Person other than Kroger, the Stockholder or
their successors or assigns, any rights or remedies under, or by reason, of this
Agreement.
9. Entire Agreement; Amendments. This Agreement contains the entire
agreement between the Stockholder and Kroger with respect to the subject matter
of this Agreement and supersedes all prior and contemporaneous agreements and
understandings, oral or written, with respect to these transactions. This
Agreement may not be changed, amended or modified orally, but may be changed
only by an agreement in writing signed by the party against whom any waiver,
change, amendment, modification or discharge may be sought.
10. Assignment. No party to this Agreement may assign any of its rights or
obligations under this Agreement without the prior written consent of the other
party to this Agreement, except that (a) Kroger may assign its rights and
obligations under this Agreement to any of its direct or indirect wholly owned
subsidiaries (including Merger Sub), but no transfer shall relieve Kroger of its
obligations under this Agreement if the transferee does not perform its
obligations, and (b) the Stockholder may transfer Subject Shares to the extent
permitted by Section 2 of this Agreement.
11. Headings. The section headings in this Agreement are for convenience
only and shall not affect the construction of this Agreement.
12. Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when executed, shall be deemed to be an original
and all of which together shall constitute one and the same document.
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13. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its
principles of conflicts of laws.
14. Termination. This Agreement shall terminate automatically and without
further action on behalf of any party at the earlier of (i) the Effective Time
(as defined in the Merger Agreement) and (ii) the date the Merger Agreement is
terminated pursuant to its terms.
15. Subject Shares. The term "Subject Shares" shall mean the Shares set
forth opposite the Stockholder's name on Schedule A hereto, together with any
Shares of capital stock of ▇▇▇▇ ▇▇▇▇▇ acquired by the Stockholder after the date
hereof over which the Stockholder has the power to vote or power to direct the
voting.
IN WITNESS WHEREOF, Kroger and the Stockholder have caused this Agreement
to be duly executed and delivered on the day and year first above written.
THE KROGER CO.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President,
Secretary and General Counsel
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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SCHEDULE A
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STOCKHOLDER SHARES OWNED
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.......................................... 132,973
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EXHIBIT A
IRREVOCABLE PROXY
In order to secure the performance of the duties of the undersigned
pursuant to the Director Voting Agreement, dated as of October __, 1998 (the
"Voting Agreement") between the undersigned and The Kroger Co., an Ohio
corporation ("Kroger"), a copy of such agreement being attached hereto and
incorporated by reference herein, the undersigned hereby irrevocably appoints
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Jr., and each of
them, the attorneys, agents and proxies, with full power of substitution in each
of them, for the undersigned and in the name, place and stead of the
undersigned, to vote or, if applicable, to give written consent, in such manner
as each such attorney, agent and proxy or his substitute shall in his sole
discretion deem proper to record such vote (or consent) in the manner set forth
in Section 1 of the Voting Agreement with respect to all shares of Common Stock,
par value $.01 per share (the "Shares"), of ▇▇▇▇ ▇▇▇▇▇, Inc., a Delaware
corporation (the "Company"), which the undersigned is or may be entitled to vote
at any meeting of the Company held after the date hereof, whether annual or
special and whether or to an adjourned meeting, or, if applicable, to give
written consent with respect thereto. This Proxy is coupled with an interest,
shall be irrevocable and binding on any successor in interest of the undersigned
and shall not be terminated by operation of law or otherwise upon the occurrence
of any event (other than as provided in Section 15 of the Voting Agreement),
including, without limitation, the death or incapacity of the undersigned. This
Proxy shall operate to revoke any prior proxy as to the Shares heretofore
granted by the undersigned. This Proxy shall terminate upon the termination of
the Voting Agreement. This Proxy has been executed in accordance with Section
212 of the Delaware General Corporation Law.
Dated: October ___, 1998
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[Name]